Wednesday, February 13, 2013

In
1985 and 2001, the Supreme Court grappled with issues as to the geographic
scope of the wetlands permitting program in the federal Clean Water Act
(CWA). In 2006, the Supreme Court rendered a third decision, Rapanos v.
United States, on appeal from two Sixth Circuit rulings. The Sixth
Circuit rulings offered the Court a chance to clarify the reach of CWA
jurisdiction over wetlands adjacent only to nonnavigable
tributaries of traditional navigable waters—including tributaries such as
drainage ditches and canals that may flow intermittently. (Jurisdiction over wetlands
adjacent to traditional navigable waters was established in the 1985 decision.)

The Court’s decision provided little clarification, however, splitting 4-1-4.
The four-justice plurality decision, by Justice Scalia, said that the CWA
covers only wetlands connected to relatively permanent bodies of water
(streams, rivers, lakes) by a continuous surface connection. Justice
Kennedy, writing alone, demanded a substantial nexus between the wetland and a traditional
navigable water, using an ambiguous ecological test. Justice Stevens, for the
four dissenters, would have upheld the existing broad reach of Corps of
Engineers/EPA regulations.

Because no rationale commanded the support of a majority of the justices, lower
courts are extracting different rules of decision from Rapanos for
resolving future cases. Corps/EPA guidance issued in December 2008 says
that a wetland generally is jurisdictional if it satisfies either the
plurality or Kennedy tests. In April 2011, the agencies proposed revised
guidance intended to clarify whether waters are protected by the CWA, but
this proposal is controversial. The ambiguity of the Rapanos decision
and questions about the agencies’ guidance have increased pressure on EPA
and the Corps to initiate a rulemaking to promulgate new regulations, but
also on Congress to provide clarification. In the 111th Congress, legislation intended to do so was approved by a
Senate committee, but no further legislative action occurred. Similar legislation
was not introduced in the 112th Congress.
Instead, proposals to bar issuance of the Corps/EPA revised guidance and
to narrow the regulatory scope of the CWA were introduced, but none of
these bills was enacted.

The legal and policy questions associated with Rapanos—regarding the
outer geographic limit of CWA jurisdiction and the consequences of
restricting that scope—have challenged regulators, landowners and
developers, and policymakers for more than 30 years. The answer may determine the
reach of CWA regulatory authority not only for the wetlands permitting program
but also for other CWA programs, since the CWA uses but one
jurisdiction-defining phrase (“navigable waters”) throughout the statute.

While regulators and the regulated community debate the legal dimensions of
federal jurisdiction under the CWA, scientists contend that there are no
discrete, scientifically supportable boundaries or criteria along the
continuum of wetlands to separate them into meaningful ecological or hydrological
compartments. Wetland scientists believe that all such waters are critical for protecting
the integrity of waters, habitat, and wildlife downstream. Changes in the
limits of federal jurisdiction highlight the role of states in protecting
waters not addressed by federal law. From the states’ perspective, federal
programs provide a baseline for consistent, minimum standards to regulate
wetlands and other waters. Most states are either reluctant or unable to take steps
to protect non-jurisdictional waters through legislative or administrative
action.

Date of Report: January 29, 2013
Number of Pages: 27Order Number: RL33263Price: $29.95

For email and phone orders, provide a Visa, MasterCard, American Express, or Discover card
number, expiration date, and name on the card. Indicate whether you want e-mail
or postal delivery. Phone orders are preferred and receive priority processing.